Sounds like a bad late-night early morning, made-for-cable movie, but the recent obsession with post-apocalyptic themes has me thinking. No, not just about how much we have to thank the Mayans for; though clearly we, as a society, are slightly perturbed. This isn’t exactly new, though, and, obviously, such predictions have tended to fizzle and fade into relative obscurity.*
The First Thing We Do….
What I had in mind, rather, was what role, if any, the lawyer would play if the nut jobs, conspiracy theorist, alternative reality observers turn out to be right. Some professions have an obvious role: cops and soldiers become the enforcers/guardians; doctors, nurses and EMTs can, well, continue what they’ve been doing (although, with far less); and politicians would continue to lead (or, start to lead, depending on how you define the current game of ‘follow the poll’ played by most (all?) major parties). Others, however, probably won’t be so useful: journalists (where’s your new media now?), investment bankers (money makes the world go round eh?), and theoretical physicist (we can’t eat the organizing principle of the universe, sorry).
So, which of the two groups does the lawyer fall into? Well, that depends (surprise!) on what you think the law is. Either it is merely a collection of rules that describes the prevailing social superstructure and, therefore, has nothing deeper to say than ‘this is how we do X today in a modern, secular, Western society’ or it is a rough approximation of a higher truth about how human society is (should be) organized. By the latter I don’t quite mean something akin to natural law. Perhaps there are certain fundamental principles that are (should be) part of every human society, but you don’t need lawyers for that; a good priest or political theorist (and you thought they were totally different) would do just fine.
No, what I have in mind is more practical. Imagine a small group of survivors settling down near a river and setting about creating a small agrarian community. Now suppose a dispute arises. Maybe its over someone’s cow or maybe its because Fred and Joe had a punch-up. Is a lawyer better equipped to settle this dispute than, say, any other reasonable person? On the former view, no, not particularly. What the lawyer is acquainted with is nothing more than the way things were done, pre-apocalypse, and that doesn’t really speak to the reality they now find themselves in. On the latter view, however, the answer is very much yes.
This, I would suggest, is because what the lawyer is acquainted with is not just a by-product of a particular social structure. Rather, she is acquainted with social interaction itself. This will require a certain level of abstraction, of course, from her day-to-day experience pre-apocalypse. She will no longer be dealing with commercial contracts, but it is not entirely clear to me that the basic concept of bilateral and voluntarily assumed duties should not be equally applicable in our post-apocalyptic setting. Certainly some of the particulars will change (there will be far less, if any, written contracts, for example), but that does not mean the theory is inadequate. The same is likely true of property and tort; really any area that remains largely common law. Areas largely governed by statute pose a slightly different problem.
So does, for that matter, criminal law, regardless of its state of codification, outside the US. This is because in the majority of other Commonwealth Realms the criminal law is enforced on behalf of Her Majesty while in the US it is on behalf of the State or the People or some similar amorphous abstraction. How to characterize criminal prosecutions in a small would-be village in post-apocalyptic countryside of Southwestern Ontario decides to characterize its criminal prosecutions will, I would think, probably not be high on their initial list of concerns. That said, while the theory might be problematic, as with contract, tort, and property, the practice need not change more significantly than taking the absence of institutions and scientific evidence into account.
Less Law, More Justice?
My point is this: just because society becomes suddenly and radically less complicated doesn’t remove the need to deal with intra-group conflict in a consistent, principled way. This is, I think, what the lawyer brings to a possible post-apocalyptic future. Perhaps this won’t be the most urgent of skills during the immediate aftermath. If, however, society is to continue to be more than merely the arbitrary rule of the strongest, then I think any surviving lawyers will have a role to play. A dangerous role, I’m sure, and perhaps one that many will shirk or abuse, but a role nonetheless.
* Side Note
I’ve always been fascinated by such apocalyptic predictions. It’s kind of like Pascal’s Wager. So what if you’re right, not only are you dead, so is everyone else and, quite clearly, no one will know, care, or remember. With this in mind, then, why don’t we all get on with our lives and worry about things that are within our control like, say, poverty, disease, or maybe the environment. That is, if that lingering, chronic, real-world kind of thing isn’t too banal for you.
